Los Angeles City Water Co. v. City of Los Angeles

• Decision Date: 13 August 1900
• Docket Number: 954.
• Court: U.S. District Court — Southern District of California
• Parties: LOS ANGELES CITY WATER CO. v. CITY OF LOS ANGELES.

103 F. 711

LOS ANGELES CITY WATER CO. v. CITY OF LOS ANGELES.

No. 954.

United States Circuit Court, S.D. California.

August 13, 1900

J. S Chapman, John Garber, and Stephen M. White, for complainant.

Walter F. Haas and Lee & Scott, for defendant.

ROSS Circuit Judge.

This is a suit in equity, the chief object of which is the annulment of an ordinance adopted by the defendant city on the 26th day of February, 1900, establishing the rates at which the complainant shall furnish water to its consumers. To the bill certain exceptions were filed by the defendant, as, also, a demurrer. Subsequently a supplemental bill was filed by the complainant, to which certain consumers of the water within the city were also made parties; and they, together with the defendant city, filed certain exceptions to the supplemental bill, as well as a demurrer thereto. The case now comes before the court on these pleadings. A similar ordinance adopted by the defendant city in February, 1897, was attacked by the complainant in a suit tried in this court before Judge Wellborn, and resulted in a decree annulling the ordinance on the ground that the rates so established were lower than those provided for by a contract entered into on the 22d day of July, 1868, by and between the defendant city, then known as the 'Mayor and Common Council of the City of Los Angeles,' on the one part, and John S. Griffin, Prudent Beaudry, and Solomon Lazard, on the other part, to whose rights and obligations under the contract the complainant company almost immediately thereafter succeeded. (C.C.) 88 F. 720. On appeal that decree was affirmed by the supreme court. 177 U.S. 558, 20 Sup.Ct 736, 44 L.Ed . . . Each of the opinions in that case shows that the validity and effect of the contract of 1868 were carefully considered, and the result of that litigation is plainly conclusive against the validity of the similar ordinance of February 26, 1900, now in question, if the provision of the contract of 1868 to the effect that the city shall not reduce the water rates below those then charged continues in force. On the part of the city it is denied that that provision of the contract in 1868 was in force at the time of the commencement of this suit, and that is the principal question in the present case. The demurrers, of course, confess the truth of all facts properly alleged in the original and supplemental bills. From these it appears that in August, 1865, the city of Los Angeles, through its they mayor and common council, thereto authorized by ordinance, entered into a contract with one Jean Louis Sainsevaine, by which the city leased to Sainsevaine "the public water works of Los Angeles City,' so called, with all and singular the rights of way and water easements, wheels, flumes, pipes, canals, reservoirs, and appurtenances thereunto belonging and appertaining, with the further right to build necessary and suitable reservoirs on vacant city lands for use in connection with said water works, and with the further right to build necessary and suitable reservoirs on vacant city lands for use in connection with said water works, and with the further right to sell and distribute water through, by, and from said works for the benefit of the said Sainsevaine' for the period of four years from February 8, 1865, with the privilege on his part to continue the agreement and lease for the further period of six years after the expiration of the four years, he giving written notice to the city of his intention to avail himself of the extension at least three months before the expiration of the original term. The obligations imposed on Sainsevaine by that instrument, and by him assumed, were: (1) To give a bond in a specified amount for the faithful performance of the contract on his part. (2) To pay to the city, as rent of the leased property and privileges, $1,000 yearly, in quarterly installments of $250 each. (3) To supply the city, so far as pipes 'have been or shall be laid,' with pure, fresh drinking water for all domestic purposes, and to keep constantly on hand, in reservoir or reservoirs, a sufficiency of such water for a 30-days supply for those purposes. (4) To replace or repair such of the pipes as should burst or leak, as soon as practicable. (5) To pay all the costs of repairs, enlargements, extensions, and preservations of the water works and appurtenances. (6) To furnish water free of charge to the public school houses in the city and to city hospitals, 'where the same are adjacent to such works and any line of pipe, ' and also for the irrigation of trees and shrubbery in the lots of school houses and in the public plaza; and to furnish water in cases of fire free of charge, whether the conflagration be of public or private property. (7) In no case to interfere with the general irrigation of the city from the public zanja, nor with the laws and ordinances governing the same. (8) In case of the extension of the lease for the additional term of six years, to execute to the city a new bond for his faithful performance of the agreement. (9) Upon the expiration of the agreement, or its continuance, as the case should be, to surrender or deliver to the city peaceable possession of the water works, rights of way, water, pipes, flumes, machinery, wheels, canals, keys, and other appurtenances thereunto belonging, including all enlargements, extensions, alterations, and additions made thereon or thereto during the tenancy, in good order and condition, reasonable use and wear excepted, and free of all debt, charges, and incumbrances. The lease also contained on the part of the city a concession to the lessee of the right to lay pipe underground in all the public streets of the city, and of taking them up when necessary, and the further covenant on the part of the city not to grant any franchise to any other person or corporation for similar purposes. In July, 1868, the contract which forms the basis of the present suit was executed; the Sainsevaine lease having been previously surrendered and canceled. It bears date July 20, 1868, but was not executed until the 22d day of that month, at which time it was authorized and confirmed by an ordinance of the city. The water works therein referred to consisted at that time of a water wheel placed in the Zanja Madre, below the point of its diversion of water from the Los Angeles river, which wheel was used for lifting the water from the zanja into a wooden flume, by which it was conducted to a pipe system consisting of about six miles of wooden pipe, which had been laid in the streets of the city, and from which the then population of about 5,000 people received water for domestic purposes. The contract of 1868 is as follows:

'This agreement, made and entered into this the 20th day of July, A.D. 1868, between the corporation known as the 'Mayor and Common Council of the City of Los Angeles,' and their successors in office, for and on behalf of said city of Los Angeles, party of the first part, and John S. Griffin, Prudent Beaudry, and Solomon Lazard, residents of the city and county of Los Angeles, state of California, party of the second part, witnesseth: That for and in consideration of the yearly payment of one thousand five hundred dollars per annum in gold coin, such payments to be made upon the first day of January of each year, after the signing and approval of this ordinance and contract, until the conclusion of the term of this contract, and the further consideration that the said parties of the second part will surrender to the said party of the first part and cancel all claims they now hold against said city for repairs of said water works and for damages, amounting to the sum of eight thousand dollars, a little more or less, and for the further consideration that the said parties of the second part shall make the following improvements about, in, and upon the said water works at their own proper cost and expenses, to wit: Lay down in streets of said city twelve miles of iron pipes of sufficient capacity to supply the inhabitants of said city with water for domestic purposes, and shall erect, or cause to be erected, one hydrant, to be used as a protection against fire, at one corner of each cross street of said city, where the water pipes now are or may hereafter be laid by virtue of this contract, and shall, within one year from the approval of this contract and ordinance, erect or cause to be erected an ornamental fountain upon the public plaza of said city, of such design as the mayor and common council shall direct, at a cost not to exceed one thousand dollars, and shall, within two years from the approval of this contract and ordinance, construct, at their own expense, such ditches, flumes, or erect such machinery, in connection with said water works, as will secure to the inhabitants of said city a constant supply of water for domestic purposes, and shall construct reservoirs of sufficient capacity for that purpose. The said party of the first part, for the above consideration, and one dollar in hand paid, the receipt whereof is hereby acknowledged, hereby covenants and agrees with the said party of the second part, their heirs, executors, administrators, or assigns, to deliver and concede to the said parties of the second part, their heirs, executors, administrators, or assigns, the exclusive use, control, possession, and management of the Los Angeles City Water Works, so called, together with, all and singular, the pipes, flumes, wheels, and other personal property composing and appertaining to said water works, in any manner whatsoever, with all the rights, easements, and privileges, and covenants as described and contained in a certain instrument of lease executed by the mayor and common council of the said city

...